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Process for Obtaining an NPDES Permit under Western Alkaline Mine Drainage Category

Process For Obtaining An NPDES Permit Under Subpart H –

Western Alkaline Mine Drainage Category

Memorandum of Understanding between the Office of Surface Mining Reclamation and Enforcement and U.S. Environmental Protection Agency, Region IX.


For coal mine sites located on Tribal lands in Arizona and New Mexico, the U.S. EPA Region IX is the permitting authority for the discharge of wastewater from the mine site under the National Pollutant Discharge Elimination System (NPDES), and the Office of

Surface Mining Reclamation and Enforcement (OSM) is the permitting authority for the mining permit pursuant to the Surface Mining Control and Reclamation Act (SMCRA).

On January 23, 2002, EPA established a new Subpart H for coverage of surface water runoff from non-processing areas of western alkaline coal mining operations. The subpart removes numeric effluent limitations at the wastewater discharge point, and instead relies on the use of Best Management Practices (BMPs) through implementation of a Sediment Control Plan and based upon sediment yield modeling to demonstrate that average annual sediment yield is not increased over pre-mining conditions. The Sediment Control Plan must identify BMPs and must describe design specifications, construction specifications, maintenance schedules, and criteria for inspection, as well as the expected performance and longevity of the BMPs.

Overlap of permitting, inspection, and enforcement provisions of SMCRA with NPDES permits

Subpart H establishes standards of performance for which there is a considerable overlap of requirements with SMCRA. EPA expects that the Sediment Control Plan and sediment yield modeling required for the NPDES permit will largely consist of materials generated as part of the SMCRA permit application. The SMCRA permitting process requires a coal-mining operator to submit an extensive reclamation plan with the permit application, including detailed hydrologic information and analysis, to OSM for approval. The requirements for the hydrologic reclamation plan are specified in 30 CFR 780.21(h). This regulation requires, in part, that the application include measures to be taken to prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to streamflow.

In the preamble to the final regulation EPA envisioned that approval by OSM of the sediment yield modeling and Sediment Control Plan would often be sufficient review to satisfy the NPDES permitting authority.

EPA and OSM believe that the Sediment Control Plan for a mine site should be incorporated into one document that is satisfactory to both the CWA and SMCRA permitting authorities.


The following process will be used by OSM and EPA to review the Sediment Control Plan and sediment yield modeling, issue NPDES and SMCRA permits (or revisions) and inspect and enforce those permits.

  1. The Operator will submit the original NPDES permit application (request for modification to a subpart H permit or renewal) along with revision(s) to the SMCRA permit to EPA Region IX. The Operator also will submit the normal number of copies of the NPDES permit application and revisions to the SMCRA permit to OSM Western Regional Coordinating Center (WRCC). OSM will serve as the point of contact for materials related to the review of both Subpart H and SMCRA materials. To meet the requirements of the NPDES and SMCRA programs, the application should include the Sediment Control Plan (BMPs and any maintenance that will be implemented, if not previously submitted), results of watershed sediment yield modeling for pre- and post disturbance, and a location map for the area under review with BMPs identified on the map (1": 400’ scale). The sediment yield model will describe the watershed area used in the model and all the assumptions that were used in developing the model.
  2. EPA, OSM, the Tribes and BIA will conduct concurrent reviews of the application. All parties will have 60 days to submit comments and deficiencies to OSM. OSM will contact EPA at the end of the 60-day period to determine if EPA has identified any deficiencies. If OSM identifies deficiencies in the application, it will provide EPA with a copy of the letter describing those deficiencies.
  3. OSM will send a letter to the operator describing all deficiencies, including any comments from other Agencies. Comments from the EPA on the NPDES application will be identified as such.
  4. When the operator submits the response to comments and deficiencies, OSM will distribute the response to all parties and repeat the process as described in steps 2, 3 and 4.
  5. Once all deficiencies have been resolved OSM will prepare a final technical review and approval document. OSM will provide a copy of the review and approval document to EPA. The technical review and approval document will be included in the EPA’s NPDES public record of decision.
  6. After receiving OSM’s technical review, EPA will publish public notice of the NPDES permit, and will send the draft permit and fact sheet to OSM and the Tribes. If comments are received, EPA will coordinate with OSM and the Tribes on the response prior to EPA issuing the NPDES permit.
  7. EPA, OSM and the Tribes will maintain close communication and coordination on inspections of the Sediment Control Measures included in the NPDES and SMCRA permits.

Dated: December 19, 2003
Alexis Strauss, Director
Water Division
U.S. EPA Region IX
75 Hawthorne St.
San Francisco, CA 94105

Pete Rutledge, Chief
Program Support Division
Western Regional Coordinating Center
Office Surface Mining
P.O. Box 46667
Denver, CO 80201

Page Last Modified/Reviewed: 12/22/16

Western Region OSMRE, PO Box 25065, Lakewood, CO 80225-0065
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